92 Decision Citation: BVA 92-21577
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-54 019 ) DATE
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THE ISSUE
Entitlement to an increased (compensable) rating for
bilateral defective hearing.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
E. J. McCafferty, Counsel
INTRODUCTION
This matter came before the Board on appeal from a rating
decision of October 1990 from the Winston-Salem, North
Carolina, Regional Office (RO). The veteran served from
March 1970 to May 1990. The notice of disagreement was
received in August 1991. The statement of the case was
issued that same month. The substantive appeal was received
in October 1991. The appeal was docketed at the Board in
January 1992. The appellant has been represented throughout
this appeal by The American Legion. That organization
submitted additional written argument to the Board in April
1992, and the case is now ready for appellate review.
CONTENTIONS
The veteran contends that the RO committed error in not
granting an increased (compensable) rating for his bilateral
hearing loss, because it did not take into account or
properly consider the severity of his hearing deficit. The
veteran contends that he does have difficulty hearing, but
that on his most recent audiometric examination the examiner
spoke in a louder than normal voice in performing word
discrimination testing. The veteran reports having hearing
problems which necessitate the use of a hearing aid and he
feels that this should warrant a compensable rating for
hearing loss.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C. § 7104
(1992), following a review and consideration of all evidence
and material of record in the veteran's claims file, and for
the following reasons and bases, it is the decision of the
Board that the preponderance of the evidence is against the
claim for an increased (compensable) rating for bilateral
hearing loss.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the instant appeal has been obtained by the
RO.
2. The veteran has level I hearing in each ear.
CONCLUSION OF LAW
An increased (compensable) rating for bilateral defective
hearing is not warranted under the applicable schedular
criteria. 38 U.S.C. § 1155 (1992); 38 C.F.R. § 4.85 and
Part 4, Code 6100.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board finds initially that the veteran's claim is well
grounded within the meaning of 38 U.S.C. § 5107(a) (1992);
that is, it is not inherently implausible. We also find
that the facts relevant to the issue on appeal have been
properly developed and that the statutory obligation of the
Department of Veterans Affairs (VA) to assist the veteran in
the development of his claim has been satisfied. 38 U.S.C.
§ 5107(a) (1992).
Disability evaluations are determined by the application of
a schedule of ratings which is based on average impairment
of earning capacity. 38 U.S.C. § 1155 (1992). Separate
diagnostic codes identify the various disabilities.
38 C.F.R. Part 4.
Evaluations of bilateral defective hearing range from
noncompensable to 100 percent based on organic impairment of
hearing acuity as measured by the results of controlled
speech discrimination tests together with the average
hearing threshold level as measured by pure tone audiometry
tests in the frequencies 1,000, 2,000, 3,000, and
4,000 cycles per second. To evaluate the degree of
disability from bilateral service-connected defective
hearing, the rating schedule establishes 11 auditory acuity
levels as designated from level I for essential normal
acuity through level XI for profound deafness. 38 C.F.R.
§ 4.85 and Part 4, Codes 6100 to 6110.
Initially, we note that the veteran questions the adequacy
of the most recent VA audiologic examination. The veteran's
expressed dissatisfaction with the testing procedures is
apparently based solely on his own opinion as he has presented
no medical or professional opinion to support his viewpoint
and is to the effect that speech discrimination testing was
done at a volume higher than that of normal conversation. It
is noteworthy in regard to this contention that testing in
this manner assists in determining the true extent of a
hearing loss. Furthermore, the VA Physician's Guide for
Disability Evaluation Examinations, 3.11c, states that speech
discrimination testing is to be "at a comfortable loudness
level above the speech reception threshold." Hence, the
testing in the instant case, if done as the veteran describes,
was in accordance with established guidelines. The results
are adequate for rating purposes. Accordingly, we find that
further development in the form of additional audiometric
testing is not necessary.
On an authorized audiological evaluation in August 1990, pure
tone thresholds, in decibels, were as follow:
Hertz 1,000 2,000 3,000 4,000 Average
Right 25 45 55 75 50
Left 10 55 60 75 50
Speech audiometry revealed speech recognition ability of
94 percent in the right ear and of 96 percent in the left
ear.
The above findings warrant a noncompensable disability evalu-
ation for bilateral defective hearing under the applicable
schedular criteria. When the average pure tone threshold is
50 decibels with 94 percent recognition ability in one ear
and 50 decibels with 96 percent recognition ability in the
other, hearing in each ear is at level I and a noncompensable
rating is assigned under Diagnostic Code 6100.
We recognize that the veteran does, indeed, have a hearing
impairment. Nevertheless, the extent of impairment currently
present is encompassed by the noncompensable rating assigned.
We note that the veteran additionally complains of tinnitus.
That disability has been assigned a separate l0 percent
rating, which the veteran does not contest herein.
ORDER
An increased (compensable) rating for bilateral hearing loss
is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
WARREN W. RICE, JR.
GEORGE R. SENYK
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.